IGNACIO DEL PRADO, PLAINTIFF AND APPELLEE, VSU MANILA ELECTRIC CO., DEFENDANT AND APPELLANT.

This action was instituted in the Court of First Instance of Manila
by Ignacio del Prado to recover damages in the amount of P50,000 for
personal injuries alleged to have been caused by the negligence of the
defendant, the Manila Electric Company, in the operation of one of its
street cars in the City of Manila. Upon hearing the cause the trial
court awarded to the plaintiff the sum of P10,000, as damages, with
costs of suit, and the defendant appealed.

The appellant, the Manila Electric Company, is engaged in operating
street cars in the City of Manila for the conveyance of passengers; and
on the morning of November 18, 1925, one Teodorico Florenciano, as
appellant’s motorman, was in charge of car No. 74 running from east to
west on R. Hidalgo Street, the scene of the accident being at a point
near the intersection of said street and Mendoza Street. After the car
had stopped at its appointed place for taking on and letting off
passengers, just east of the intersection, it resumed its course at a
moderate speed under the guidance of the motorman. The car had
proceeded only a short distance, however, when the plaintiff, Ignacio
del Prado, ran across the street to catch the car, his approach being
made from the left. The car was of the kind having entrance and exit at
either end, and the movement of the plaintiff was so timed that he
arrived at the front entrance of the car at the moment when the car was
passing.

The testimony of the plaintiff and of Ciriaco Guevara, one of his
witnesses, tends to show that the plaintiff, upon approaching the car,
raised his hand as an indication to the motorman of his desire to board
the car, in response to which the motorman eased up a little, without
stopping. Upon this the plaintiff seized, with his left hand, the front
perpendicular handpost, at the same time placing his left foot upon the
platform. However, before the plaintiff’s position had become secure,
and even before his raised right foot had reached the platform, the
motorman applied the power, with the result that the car gave a slight
lurch forward. This sudden impulse to the car caused the plaintiff’s
foot to slip, and his hand was jerked loose from the handpost. He
therefore fell to the ground, and his right foot was caught and crushed
by the moving car. The next day the member had to be amputated in the
hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either
side with both right and left hand. The latter statement may possibly
be incorrect as regards the use of his right hand by the plaintiff, but
we are of the opinion that the finding’ of the trial court to the
effect that the motorman slowed up slightly as the plaintiff was
boarding the car and that the plaintiff’s fall was due in part at least
to a sudden forward movement at the moment, when the plaintiff put his
foot on the platform is supported by the evidence and ought not to be
disturbed by us.

The motorman stated at the trial that he did not see the plaintiff
attempting to board the car; that he did hot accelerate the speed of
the car as claimed by the plaintiff’s witnesses; and that he in fact
knew nothing of the incident until after the plaintiff had been hurt
and some one called to him to stop. We are not convinced of the
complete candor of this statement, for we are unable to see how a
motorman operating this car could have failed to see a person boarding
the car under the circumstances revealed in this case. It must be
remembered that the front handpost which, as all witnesses agree, was
grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.

With respect to the legal aspects of the case we may observe at the
outset that there is no obligation on the part of a street railway
company to stop its cars to let on intending passengers at other points
than those appointed for stoppage. In fact it would be impossible to
operate a system of street cars if a company engaged in this business
were required to stop any and everywhere to take on people who are too
indolent, or who imagine themselves to be in too great a hurry, to go
to the proper placea for boarding the cars. Nevertheless, although the
motorman of this car was not bound to stop to let the plaintiff on, it
was his duty to do no act that would have the effect of increasing the
plaintiff’s peril while he was attempting to board the car. The
premature acceleration of the car was, in our opinion, a breach of this
duty.

The relation between a carrier of passengers for hire and its
patrons is of a contractual nature; and a failure on the part of the
carrier to use due care in carrying its passengers safely is a breach
of duty (culpa contractual) under articles 1101, 1103, and
1104 of the Civil Code. Furthermore, the duty that the carrier of
passengers owes to its patrons extends to persons boarding the cars as
well as to those alighting therefrom. The case of Cangco vs. Manila
Railroad Co. (38 Phil., 768), supplies an instance of the violation of
this duty with respect to a passenger who was getting, off of a train.
In that case the plaintiff stepped off of a moving train, while it was
slowing down in a station, and at a time when it was too dark for him
to see clearly where he was putting his feet. The employees of the
company had carelessly left watermelons on the platform at the place
where the plaintiff alighted, with the result that his feet slipped and
he fell under the car, where his right arm was badly injured. This
court held that the railroad company was liable for breach of positive
duty (culpa contractual), and the plaintiff was awarded damages in the
amount of P2,500 for the loss of his arm. In the opinion in that case
the distinction is clearly drawn between a liability for negligence
arising from breach of contractual duty and that arising under articles
1902 and 1903 of the Civil Code (culpa aquiliana).

The distinction between these two sorts of negligence is important
in this jurisdiction, for the reason that where liability arises from a
mere tort (culpa aquiliana), not involving a breach of
positive obligation, an employer, or master, may exculpate himself,
under the last paragraph of article 1903 of the Civil Code, by proving
that he had exercised due diligence to prevent the damage; whereas this
defense is hot available if the liability of the master arises from a
breach of contractual duty (culpa contractual).
In the case before us the company pleaded as a special defense that it
had used all the diligence of a good father of a family to prevent the
damage suffered by the plaintiff; and to establish this contention the
company introduced testimony showing that due care had been used in
training and instructing the motorman in charge of this car in his art.
But this proof is irrelevant in view of the fact that the liability
involved was derived from a breach of obligation under article 1101 of
the Civil Code and related provisions. (Manila Railroad Co. vs.
Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil.,
875, 887; De Guia vs. Manila Electric Railroad & Light Co., 40
Phil., 706, 710.)

Another practical difference between liability for negligence
arising under article 1902 of the Civil Code and liability arising from
negligence in the performance of a positive duty, under article 1101
and related provisions of the Civil Code, is that, in dealing with the
latter form of negligence, the court is given a discretion to mitigate
liability according to the circumstances of the case (art 1103). No
such general discretion is given by the Code in dealing with liability
arising under article 1902; though possibly the same end is reached by
courts in dealing with the latter form of liability because of the
latitude of the considerations pertinent to cases arising under this
article.

As to the contributory negligence of the plaintiff, we are of the
opinion that it should be treated, as in Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil., 359), as a mitigating circumstance under article
1103 of the Civil Code. It is obvious that the plaintiff’s negligence
in attempting to board the moving car was not the proximate cause of
the injury. The direct and proximate cause of the injury was the act of
appellant’s motorman in putting on the power prematurely. A person
boarding a moving car must be taken to assume the risk of injury from
boarding the car under the conditions open to his view, but he cannot
fairly be held to assume the risk that the motorman, having the
situation in view, will increase his peril by accelerating the speed of
the car before he is planted safely on the platform. Again, the
situation before us is one where the negligent act of the company’s
servant succeeded the negligent act of the plaintiff, and the
negligence of the company must be considered the proximate cause of the
injury. The rule here applicable seems to be analogous to, if not
identical with that which is sometimes referred to as the doctrine of
“the last clear chance” In accordance with this doctrine, the
contributory negligence of the party injured will not defeat the action
if it be shown that the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of the negligence of
the injured party (20 R. C. L., p. 139; Carr vs. Interurban Ry. Co.,
185 Iowa, 872; 171 N. W., 167). The negligence of the plaintiff was,
however, contributory to the accident and must be considered as a
mitigating circumstance.

With respect to the effect of this injury upon the plaintiff’s
earning power, we note that, although he lost his foot, he is able to
use an artificial member without great inconvenience and his earning
capacity has probably not been reduced by more than 30 per centum. In
view of the precedents found in our decisions with respect to the
damages that ought to be awarded for the loss of a limb, and more
particularly Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359);
Cangco vs. Manila Railroad Co. (38 Phil., 768); and Borromeo vs. Manila
Electric Railroad and Light Co. (44 Phil,, 165), and in view of all the
circumstances connected with the case, we are of the opinion that the
plaintiff will be adequately compensated by an award of P2,500.

It being understood, therefore, that the appealed judgment is
modified by reducing the recovery to the sum of P2,500, the judgment,
as thus modified, is affirmed. So ordered, with costs against the
appellant.

Malcolm, Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.

---

DISSENTING

JOHNSON, J., with whom concurs JOHNS, J.:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to the second division for decision. I was then the ponente.
I was then convinced, as I am now, after a re-examination of the
record, that the judgment of the lower court should be revoked for the
following reasons:

(a) That the motorman managed the car carefully and with ordinary prudence at the moment the alleged accident occurred;

(b)
That the appellee acted with imprudence and lack of due care in
attempting to board a street car while the same was in motion; and

(c) That he contributed to his own injury, without any negligence or malice or imprudence on the part of the defendant.

There is nothing in the record which even remotely justifies a
contribution of damages between the appellee and the appellant. The
appellee should be required to suffer the damages which he himself,
through his own negligence, occasioned, without any negligence,
imprudence or malice on the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and the appellant absolved from all liability under the complaint.